KENDALL J. NEWMAN, Magistrate Judge.
Presently pending before the court is Bond Safeguard Insurance Company's ("BSIC") motion for reconsideration of the court's prior March 17, 2014 order (ECF No. 18) declining to impose sanctions on third party witness Deborah Sweeney ("Sweeney"). (ECF No. 20.) Sweeney has opposed the motion. (ECF No. 24.)
This miscellaneous action was commenced on November 13, 2013. (ECF No. 1.) On February 19, 2014, based on an application filed by BSIC, the court issued an order to show cause why contempt citations should not be issued and monetary sanctions imposed against third party witnesses Sweeney, Molly Floto (Sweeney's daughter), and their attorney Brian Barrad, due to their alleged failure to comply with plaintiff's subpoenas and this court's December 6, 2013 order directing compliance with those subpoenas. (ECF Nos. 6, 9, 11.) The subpoenas essentially called for any documents and electronically stored information concerning an individual named George Kramer (Sweeney's brother and a former defendant/person of interest in underlying litigation in Colorado), as well as entities with which Kramer was associated. (ECF No. 1-1, Exs. C & D.) As the court noted at the time, it appeared that BSIC was primarily seeking to learn Kramer's whereabouts and contact information, as well as information concerning his properties and assets.
At a March 13, 2014 hearing on the order to show cause, Sweeney largely represented that she had no written documents, e-mails, or text messages for the past 6 ½ years that would be responsive to the subpoenas. According to Sweeney, she built a second residence with her own money on real estate owned by Kramer located at 1992 Vista Mar Drive in Eldorado Hills, California, and obtained a promissory note and deed of trust from Kramer essentially to protect Sweeney's interest in that property. She produced the deed of trust, but was unable to locate the promissory note. (
Thereafter, on September 3, 2015, almost 18 months after the court's March 17, 2014 order was entered, BSIC filed the instant motion for reconsideration. (ECF No. 20.) BSIC apparently commenced a new civil action in this court against Kramer and Sweeney in August 2014.
BSIC cites no particular authority pursuant to which it seeks reconsideration. However, the court liberally construes the motion as seeking reconsideration of the court's prior order pursuant to Federal Rule of Civil Procedure 60(b).
Fed. R. Civ. P. 60(b). BSIC's motion for reconsideration, which alleges the recent discovery of false statements and misrepresentations by Sweeney, appears to be based on Rule 60(b)(2) (newly discovered evidence) and Rule 60(b)(3) (fraud, misrepresentation, or misconduct by an opposing party).
However, BSIC cannot obtain reconsideration pursuant to those provisions, because BSIC filed its motion more than a year after entry of the court's March 17, 2014 order.
Even though a motion for reconsideration pursuant to Rule 60(b)(4)-(6) need only be made within a reasonable time and is not subject to the one-year limitation, any reliance on those provisions would be misplaced. Rule 60(b)(4) and 60(b)(5), by their terms, clearly do not apply to BSIC's motion in this case, and Rule 60(b)(6), known as the "catch-all" provision, "applies only when the reason for granting relief is not covered by any of the other reasons set forth in Rule 60."
Therefore, the court does not reach the merits of the matter, but instead concludes that BSIC's motion for reconsideration must be denied as untimely. "While enforcement of the time limit may seem unfair, the general purpose of Rule 60(b) is to strike a proper balance between the conflicting principles that litigation must be brought to an end and that justice must be done."
Accordingly, IT IS HEREBY ORDERED that: